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1997 DIGILAW 1283 (MAD)

Rukmani Ammal v. Ramasami Konar

1997-11-11

K.GOVINDARAJAN

body1997
Judgment :- 1. The seventh defendant, aggrieved against the dismissal of her petition filed under Section 47 of the Code of Civil Procedure, namely, E.A. No. 575 of 1981 in O.S. No. 794 of 1974, on the file of the District Munsif, Tirunelveli, has filed the above Revision. 2. It is not in dispute that the property in question in entirety was mortgaged and the first respondent, to recover the mortgage amount filed O.S. No. 794 of 1974 on the file of the District Munsif, Tirunelveli. Preliminary decree was passed on 9.7.1979. Subsequently on 8.8.1980 final decree was also passed. He filed E.P. No. 816 of 1980 to execute the decree. In the execution proceedings, the entire property was brought to sale and on 5.3.1981 the second respondent purchased the said property in Court auction sale for a sum of Rs. 15,000/-. The sale was confirmed on 9.6.1981. Thereafter on 28.6.1981 possession was delivered to the second respondent. 3. At this stage the petitioner/seventh defendant in the suit filed E.A. No. 575 of 1981 on 6.7.1981 under Section 47 of C.P.C. to set aside the sale held on 5.3.1981. In the petition the petitioner mainly raised two grounds in support of her prayer to set aside the said sale; (1) No notice was served on the petitioner in accordance with Order 21, Rule 66 of C.P.C. which is mandatory; (2) instead of dividing the property into various plots, the first respondent had brought the property to sale under one lot. The entire property need not be sold to meet the decree amount. 4. The Court auction purchaser/second respondent filed counter objecting the petition. Even respondents 4 to 8 had also filed counter. The trial Court rejected the petition after elaborately discussing the issue holding that the notice was properly served on 31.12.1980 by affixure and the Court satisfied with the said service on the respondent, and the ground raised by the petitioner cannot be sustained. Aggrieved against the said order, the petitioner has filed the above Revision. 5. The learned counsel appearing for the petitioner has submitted that no proper notice was served on the petitioner. So the entire proceedings are vitiated and the sale has to be set aside. Aggrieved against the said order, the petitioner has filed the above Revision. 5. The learned counsel appearing for the petitioner has submitted that no proper notice was served on the petitioner. So the entire proceedings are vitiated and the sale has to be set aside. According to her to recover the decree amount it is enough to bring a portion of the property for sale and not the entire property Arguing contra, the learned counsel appearing for the respondent has submitted that notice under Order 21, Rule 66 was properly served by affixure. After examining the Court officer the Court came to the conclusion that service was sufficient and so the petitioner cannot now raise the said issue in this petition. According to the learned counsel appearing for the respondent/auction purchaser, the property itself was sold only for Rs. 15,005/- subject to an encumbrance of Rs. 7,000/-. The decree amount as on the date of sale was Rs. 7,400/-. So, the question of selling the property in portion will not arise. 6. As stated above the final decree was passed on 8.8.1980. The first respondent filed E.P. No. 816 of 1980 to execute the mortgage decree after proper service under Order 21, Rule 66 C.P.C. The trial Court found on the basis of Ex.R-9 that notice was served by affixure on 31.12.1980 and after examining the process server, the Court had satisfied with the service. Thereafter the case was adjourned for filing counter by the petitioner on 3.2.1981. Since the petitioner did not appear before the Court even after sale on 5.3.1981, it was confirmed only on 9.6.1981. So, on the basis of records the trial Court found that the service of notice under Order 21, Rule 66 had been effected properly. Sitting in revision, I am not inclined to interfere with the factual finding given by the trial Court on the basis of the records. 7. The next submission made by the learned counsel appearing for the petitioner is that the entire property was brought to sale though a portion of the property is enough to meet the decree amount and the same vitiated the sale itself. 7. The next submission made by the learned counsel appearing for the petitioner is that the entire property was brought to sale though a portion of the property is enough to meet the decree amount and the same vitiated the sale itself. In support of her submission the learned counsel relied on the decision in Athianna Gounder v. Kumaraswamy (now deceased) and Natarajan (199 I M.L.J. 657) = (1997 1 L.W. 374) to submit that the entire property need not be sold to meet the decree amount, wherein S.S. Subramani, J., has held as follows: — “In view of the amendment to O. 21, Rule 66 (a) C.P.C., (Extracted supra), as Act 104 of 1976, a duty is cast on the Court to verify whether the entire property has to be sold, or a sale of only a portion of it will be sufficient to meet the decree amount. In this case, admittedly, that procedure was not adopted.” 8. The learned counsel has also relied on the decision of the Apex Court in Subba Navithan v. Veluchami Gounder (1997 I M.L.J. 476) in support of the said submission. 9. But, unfortunately, such objection was not raised before the executing Court when the property was brought to sale. So, instead of dividing the property into various lots, the first respondent put the entire property in one lot. We have to see whether the same vitiates the sale. Though the said objection was raised now in the present petition filed before the trial Court, she has not stated how she would be prejudiced or she would sustain injury by the same. Nothing has also been stated in the petition. Moreover the entire property could be sold only for a sum of Rs. 15,005/- subject to encumbrance of Rs. 7,000/- and the decree amount as on the date of sale was Rs. 7,400/-. So, the case of the petitioner that if the property was sold in lots, it would have fetched more price cannot be correct. 10. By selling more extent of property than necessary cannot perforce be held to be nullity, being a sale without jurisdiction and any breach of the above Rules may bring the case only within the ambit of O. 21, Rule 90 C.P.C. Factually in this case the entire property was sold only for Rs. 15,005/-. 10. By selling more extent of property than necessary cannot perforce be held to be nullity, being a sale without jurisdiction and any breach of the above Rules may bring the case only within the ambit of O. 21, Rule 90 C.P.C. Factually in this case the entire property was sold only for Rs. 15,005/-. So, this Court need not go into the question whether the petitioner could avoid the sale on the said ground, stating that the Court had committed irregularity in not following O. 21, R. 64 of C.P.C. 11. In view of the above, I find that the trial Court has not committed any irregularity or error of jurisdiction so as to enable this Court to interfere with the order of the trial Court. 12. In the result, this Revision is dismissed. No costs.